Citation Nr: 1719680
Decision Date: 06/02/17 Archive Date: 06/14/17
DOCKET NO. 10-38 006 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to increases in the staged [20 percent under Diagnostic Code (Code) 5258 prior to September 18, 2015, and 10 percent under Code 5003-5260 from September 18, 2015] ratings assigned for a left knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Dupont, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from September 1975 to September 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for left knee degenerative arthritis, rated 10 percent, effective August 31, 2007. An April 2009 rating decision by the Montgomery, Alabama RO continued that rating. [An October 2012 rating decision assigned a temporary total (100%) convalescence rating from February 7, 2012, through May 31, 2012; that period of time is not for consideration herein.] This matter is now in the jurisdiction of the Houston, Texas RO. In June 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In September 2016, the case was remanded for additional development.
On remand, the VA Appeals Management Center (AMC) issued a November 2016 rating decision which granted service connection for left knee meniscal tear, rated 20 percent, effective August 31, 2007 to September 18, 2015, and assigned a 10 percent rating for left knee limitation of flexion from September 18, 2015. [The rating decision essentially substituted a 20 percent rating under Code 5258 in place of the 10 percent rating for arthritis prior to September 18, 2015, and then replaced the rating under Code 5258 with a 10 percent rating for arthritis from that date.]
FINDINGS OF FACT
1. Prior to September 18, 2015, the Veteran's left knee disability was manifested by an MRI-confirmed medial meniscus tear with weakness, stiffness, effusion, giving way and crepitus and by x-ray-confirmed degenerative arthritis with painful (but limited to less than compensable degree for flexion or extension limitation) range of motion; subluxation, instability and ankylosis were not shown.
2. From September 18, 2015, the Veteran's left knee disability has been manifested by meniscectomy residuals (symptomatic removal of semilunar cartilage) with stiffness and by x-ray confirmed arthritis (with motion limited, but by less than the degree warranting a compensable rating for limitation of flexion or extension); subluxation, instability, and ankylosis are not shown.
CONCLUSION OF LAW
The Veteran's left knee disability warrants staged ratings of: a combined 30 percent (based on a formulation of 20 percent under Code 5258 and 10 percent under Code 5003-5260), but no higher, prior to September 18, 2015; and a combined 20 percent (10 percent under Code 5259 and 10 percent under Code 5003-5260), but no higher, throughout from that date. 38 U.S.C.A. § 1155, 5107 (West 2015); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14. 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5010, 5258, 5259, 5260, 5261 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
As the appeal is from the rating decision that granted service connection for the Veteran's left knee disability and assigned an initial rating and effective date for the award, statutory notice was fulfilled, and is no longer necessary. A statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating. A deficiency in notice is not alleged.
In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge who conducts a hearing to fulfill two duties to comply with the above regulation: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. During the June 2016 hearing, the undersigned explained what was needed to substantiate the claim, elicited testimony regarding the state of the disability, and identified necessary development to be completed. A deficiency in the conduct of the hearing is not alleged. The Board finds that there has been compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant.
The Veteran's pertinent treatment records have been secured. He was afforded VA examinations in January 2008, March 2009, June 2012, June 2016 (for a right knee disability), and October 2016 (pursuant to the Board's September 2016 remand). The Board finds the examination reports adequate for rating purposes as they note all findings needed to properly adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met.
Legal Criteria
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
The Veteran's left knee disability has been rated under Code 5258 for dislocated semilunar cartilage, and under Code 5003-5260 for painful motion of the knee with evidence of degenerative arthritis. Under Code 5258, a maximum 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate Code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. Under Code 5260, limitation of flexion of the leg warrants a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a maximum 30 percent rating when limited to 15 degrees.
Knee disability may also be rated under Codes 5256, 5257, 5259 and 5261. Code 5256 applies when the knee is ankylosed. Under Code 5257, slight recurrent subluxation or lateral instability of the knee warrants a 10 percent rating; moderate recurrent subluxation or lateral instability warrants a 20 percent rating; and, severe recurrent subluxation or lateral instability warrants a 30 percent rating. Under Code 5259, a (maximum) 10 percent rating is assigned for symptomatic removal of semilunar cartilage. Under Code 5261, limitation of extension of the leg warrants a 0 percent rating when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a maximum 50 percent rating when limited to 45 degrees.
Normal or full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.
Separate ratings may be assigned for separate symptoms, including for [compensable] limitations of flexion and extension, instability, and dislocation of semilunar cartilage or symptomatic removal of semilunar cartilage. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004).
In determining the degree of limitation of motion, the provisions of 38 U.S.C.A. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.
When the appeal is from the initial rating assigned with an award of service connection, the entire period of time from the effective date of the award to the present is for consideration, and separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999).
When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2015).
Factual Background
The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.
On January 2008 VA (fee basis) knee examination, the Veteran reported left knee pain rated 6/10. The examiner noted an abnormal gait favoring the left knee. On examination, the left knee showed no signs of edema, effusion, weakness, tenderness, subluxation, guarding of movement, genu recurvatum, or locking pain. Crepitus was noted. Range of motion testing showed left knee flexion to 119 degrees (with painful motion at 119 degrees) and extension to 0 degrees. (For comparative purposes, right knee range of motion was flexion to 136 degrees and extension to 0 degrees.) Following repetitive use testing, left knee function was limited by pain, but not fatigue, weakness, lack of endurance, or incoordination. Stability testing showed normal anterior, posterior, and medial-lateral stability without evidence of patellar subluxation/dislocation. X-rays showed degenerative arthritic changes. The diagnosis was degenerative arthritis of the left knee joint with subjective pain and evidence of crepitus. The examiner opined that the Veteran's left knee impacts his usual occupation as it may occasionally give way.
A September 2008 physical therapy record notes the Veteran's report of left knee pain and that his knee is "giving away some secondary to knee pain." On examination, range of motion was within normal limits and strength was normal 5/5. Instability tests were normal. He was provided a knee brace and instructed in rehabilitative exercises.
A March 2009 VA knee examination report notes complaints of increasing left knee pain over the prior two years. The Veteran reported weakness and stiffness, and denied instability and giving way. He reported attending physical therapy and was noted to be using a knee brace and cane. On examination, effusion and subpatellar tenderness were noted. There was no crepitation, clicking/snapping, grinding, locking, or instability. Range of motion testing showed flexion to 100 degrees and extension to 0 degrees. MRI showed a longitudinal horizontal tear of the posterior horn of the medial meniscus; the extensor mechanism, cruciate ligaments, and collateral ligaments show no abnormalities. Mild degenerative arthrosis of the femoral tibial compartments was noted. The diagnoses were chondromalacia, meniscal tear, and DJD of the left knee. The Veteran reported that he was not working; he was laid off and was going to school. The examiner opined that the Veteran's left knee would have a moderate impact on activities of daily living.
A July 2010 orthopedic record notes complaints of left knee pain and reports of the knee giving out after prolonged squatting. The Veteran denied swelling. Instability tests were negative. MRI showed a medial meniscal tear.
December 2011 MRI of the left knee showed mild chondromalacia patella, mild patellar tendinosis, and large unstable flap tear of the posterior horn and the medial meniscus.
In February 2012, the Veteran underwent an arthroscopic left knee partial medial meniscectomy and lateral condyle chondroplasty. Postoperative diagnoses were left knee medial meniscus tear, grade 2 chondromalacia patellae, and focal grade 3 changes posterior lateral femoral condyle. The report notes that following repair of the meniscus and cleanup of frayed edges, the remaining menisci were stable and showed no extrusion.
On June 2012 VA knee examination (four months after surgery), the Veteran reported increased pain since the 2009 examination. He also reported a change of jobs due to residual knee problems; he denied flare-ups and endorsed regular use of a knee brace and cane. On examination, range of motion testing showed left knee flexion to 105 degrees (with painful motion at 90 degrees) and extension to 0 degrees (no objective evidence of painful motion). (For comparison, right knee range of motion was flexion to 135 degrees and extension to 0 degrees, both without evidence of pain.) Following repetitive use testing, left knee flexion was to 100 degrees with extension unchanged. The Veteran reported functional loss due to less movement than normal and pain on movement. Left knee Tenderness or pain on palpation was noted. Muscle strength testing was normal 5/5 on flexion and extension. Stability testing showed normal anterior, posterior, and medial-lateral stability without evidence of patellar subluxation/dislocation. X-rays showed left knee arthritis. The examiner identified pain as a residual symptom of the Veteran's February 2012 left knee meniscectomy, and opined that the left knee disability impacts on ability to work, noting that he changed jobs to a security guard from a forklift operator due to an inability to properly operate the controls.
An August 2012 clinical record notes that the Veteran was working 60 hours per week at a temporary job.
A June 2013 treatment record notes complaints of left knee pain. On examination, there was no cyanosis, clubbing, edema, or effusion. The assessment was left knee pain status post left meniscectomy; Norco was prescribed.
An August 2015 treatment record notes complaints of left knee pain and giving way. On examination, the knee was stable to varus and valgus stress. X-rays showed mild degenerative changes.
A September 15, 2015, clinical record notes the Veteran's report of a constant, dull ache and stiffness of the left knee. He denied swelling, locking, or instability. On examination, range of motion was flexion to 135 degrees and extension to -5 degrees. The ligaments were stable and strength was 5/5. He received a corticosteroid injection. September 18, 2015, x-rays showed mild degenerative changes; knee alignment and soft tissues were normal.
A March 2016 social work record notes that the Veteran reported starting a job at a warehouse, stocking at nights. He indicated that the job is manageable, even with his knee disability.
On June 2016 VA (fee basis) knee examination, range of motion testing showed left knee flexion to 140 degrees and extension to 0 degrees. There was no objective evidence of tenderness or pain to palpation, pain with weight bearing, or crepitus. Following repetitive use testing, there was no evidence of additional loss of function or range of motion. Left knee stability testing was normal; there was no ankylosis.
On October 2016 VA knee examination, the Veteran reported constant left knee pain rated 8/10. He denied flare-ups, but reported that his knee limits his ability to walk long distances. He noted that he wears a knee brace 10 to 12 hours per day. Range of motion testing showed left knee flexion to 90 degrees and extension to 0 degrees. (For comparison, right knee range of motion was also flexion to 90 degrees and extension to 0 degrees.) Left knee passive range of motion was flexion to 95 degrees and extension to 0 degrees. The examiner noted that such measurements were consistent with left knee flexion of 90 to 100 degrees seen while sitting in a chair during the evaluation process. There was no evidence of localized tenderness or pain on palpation, crepitus, or pain on weight bearing. Repetitive use testing did not result in additional limitation of motion or functional loss such as pain, weakness, fatigability, or incoordination. Muscle strength testing was normal 5/5 on flexion and extension. Stability testing showed normal anterior, posterior, and medial-lateral stability without evidence of patellar subluxation or dislocation. Review of August 2015 x-rays found mild degenerative changes. The examiner noted that the Veteran underwent debridement of the medial meniscus in 2012. The diagnosis was left knee osteoarthritis. The examiner opined that the Veteran's left knee disability does not impact his ability to perform any type of occupational task.
Analysis
The Veteran's left knee disability has been assigned staged ratings. It has been rated 20 percent under Code 5258 prior to September 18, 2015, and 10 percent under Code 5003-5260 from September 18, 2015. As was noted above, inasmuch as the Veteran underwent a February 2012 partial medial meniscectomy, following that procedure Code 5259 (for symptomatic removal of semilunar cartilage) is for consideration, and will be discussed in greater detail below.
The Board notes that applicability of Codes 5256, 5262, and 5263 has been considered. However, as the evidence does not show the pathology required for ratings under such codes (ankylosis, nonunion or malunion of the tibia or fibula, or genu recurvatum) at any time during the evaluation period, those Codes do not have applicability in this matter (and will not be further discussed).
The Board has also considered whether a separate rating for recurrent subluxation or lateral instability would be warranted at any time under Code 5257. At no time under consideration was objective evidence of instability or subluxation shown. Specifically, testing showed normal anterior, posterior, and medial-lateral stability without evidence of patellar subluxation/dislocation on January 2008 VA examination (fee basis), September 2008 clinical examination, March 2009 VA examination, July 2010 clinical examination, June 2012 VA examination, August 2015 examination, June 2016 VA examination (fee basis), and October 2016 VA examination. The Board acknowledges that the Veteran has occasionally reported that his knee gives way (and at other times denied instability); however the overall medical evidence shows that such was "secondary to knee pain," and not due to instability. See September 2008 physical therapy record. Accordingly, a separate rating under Code 5257 for recurrent subluxation or lateral instability is not warranted at any time during the appeal period.
Prior to September 18, 2015, the Veteran's left knee disability has been rated 20 percent under Code 5258 (for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint). This is the maximum rating under Code 5258. While part of the period was following the removal of semilunar cartilage with the meniscectomy, the assignment of separate ratings under Codes 5258 and 5259 is prohibited by the rule against pyramiding, as the two ratings contemplate overlapping cartilage symptoms. See 38 C.F.R. § 4.14. As the maximum rating under Code 5259 is 10 percent, the Veteran is better served by the 20 percent rating the RO has assigned under Code 5258.
The remaining question is whether a separate compensable rating under the criteria in Codes 5003, 5010, 5260, and 5261 for arthritis with limitation of motion may be assigned for the Veteran's left knee disability in addition to the 20 percent rating under Code 5258. The Board must essentially decide whether separate and distinct symptoms exist or whether the symptomatology is overlapping such that only a single rating is appropriate. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VAOPGCPREC 23-97.
Review of the evidence shows that the Veteran's cartilage impairment as manifested prior to the February 2012 surgery, included weakness, stiffness, effusion, giving way, and crepitus. See January 2008 and March 2009 VA examination reports. This symptomatology is separate and distinct from the painful/limited motion for which a 10 percent rating had been assigned. Consequently separate ratings for the arthritis and cartilage disabilities were clearly warranted.
As the AOJ did not reduce the rating under Code 5258 until September 18, 2015, the Board will not further consider the cartilage impairment rating assigned for the Veteran's left knee disability prior to that date. From that date Veteran continues to report stiffness, and a feeling of giving way (leading him to regular use of a brace and cane for ambulation) which have been attributed by medical providers to the meniscectomy. See June 2012 VA examination report; see also June 2013 treatment record. As the left knee is now post meniscectomy (with removal of semilunar cartilage) and dislocated semilunar cartilage is no longer shown, the cartilage aspect of the disability is more appropriately rated under Code 5259, and the Board finds that such rating is warranted (from the date the rating under Code 5258 was no longer in effect). A separate compensable (10 percent under Code 5003) rating remains warranted for the arthritis aspect of the disability because separate and distinct pathology (x-ray evidenced arthritis) and impairment (painful/limited motion) continue to be shown. A higher rating under Code 5003 is not warranted because neither flexion nor extension is shown to be limited to a degree compensable under Codes 5260, 5261, even with factors such as pain, use, and periods of exacerbation considered.
Consequently, a combined rating of 30 percent (20 percent under Code 5258 and 10 percent under Code 5003), but no higher, is warranted for the period prior to September 18, 2015, and a combined of 20 percent (10 percent under Code 5259 and 10 percent under Code 5003), but no higher, is warranted from that date.
The manifestations and impairment associated with the Veteran's left knee disability (pain, reduced range of motion, difficulty standing or walking for prolonged periods of time, feeling of giving way, crepitus, stiffness, and in the past weakness and are fully contemplated by the schedular ratings currently assigned. Therefore the schedular criteria are not inadequate. Notably, schedular criteria provide for higher ratings, but those criteria are not met. There is nothing exceptional or unusual about the Veteran's left knee disability, and referral for consideration of an extraschedular rating is not indicated. Thun v. Peake, 22 Vet. App. 111 (2008).
Finally, the record does not show, nor has the Veteran alleged, that he is unemployable due to his left knee disability. While he reported changing jobs (from forklift operator to a security guard) in 2012 after the meniscectomy, he has not indicated that he is unemployed due to his left knee disability. Notably, he reported working full-time (or more) on August 2012 and March 2016 clinical visits. Consequently, the matter of entitlement to a total rating based on individual unemployability (TDIU) is not raised by the record in the context of the instant claim for increase . See Shinseki v. Rice, 22 Vet. App. 447 (2009).
ORDER
A 30 percent combined (20 percent under Code 5258 and 10 percent under Code 5003) rating for the period prior to September 18, 2015 and a 20 percent combined (10 percent under Code 5259 and 10 percent under Code 5003) rating for the period from that date are granted for the Veteran's left knee disability, subject to the regulations governing payment of monetary awards.
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GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs